Court Greenlights Swinomish Tribe's Oil Train Lawsuit

Swinomish Tribe alleges that BNSF Railway transported Bakken crude across the reservation by train, violating agreements.

The Swinomish Tribe’s lawsuit against BNSF Railway, alleging the railroad company violated an agreement related to the carrying of cargo across Swinomish lands, will proceed in federal court.

The U.S. District Court for the Western District of Washington found on January 13 that the Swinomish Tribe’s lawsuit against BNSF is not preempted by—meaning it doesn’t have less authority than—federal law regulating railroads. In an announcement of the decision, Swinomish Chairman Brian Cladoosby called the court’s ruling a victory not just for Swinomish but for all of Indian Country as well.

“Again and again, we have seen agreements with Tribes ignored or just tossed aside when they are inconvenient,” Cladoosby said in a statement. “We are grateful that the court has affirmed that agreements with tribes must be honored.”

The case number is 2:15-cv-00542-RSL. Swinomish is represented by the firm of Tousley Brain Stephens of Seattle and the Office of the Swinomish Tribal Attorney. BNSF is represented by the firm of DLA Piper US of Seattle.

The tribe sued BNSF Railway in April 2015 after BNSF confirmed it was rolling 100-car trains, loaded with Bakken crude oil, across the reservation daily to the nearby Tesoro Refinery—and that it planned to continue to do so. The tracks are adjacent to the Swinomish Casino and Lodge and pass over Swinomish Channel and Padilla Bay, which are environmentally sensitive habitat and part of Swinomish’s fishing grounds.

BNSF had failed to disclose to Swinomish the increased number of train cars—from the agreed-upon 25 cars daily—and the content of its cargo, which the court ruled were breaches of the easement agreement. BNSF “made no attempt to obtain the Tribe’s written agreement to an increase in traffic across the Reservation until long after the unit train shipments had begun,” the court ruled.

Train traffic across the reservation has been an issue since the tracks were laid almost 130 years ago. The Swinomish Tribe reserved the lands that comprise its reservation when it made other lands in its territory available for newcomers in the Treaty of Point Elliott of 1855. According to court documents, the Seattle and Northern Railway Company began constructing a rail line across the northern edge of the Swinomish Reservation in or around 1889.

“The Tribe objected, and the construction was temporarily halted while an agent of the Commissioner of Indian Affairs investigated,” court documents state. “The local U.S. Attorney was ‘directed to institute proceedings to prevent the building of the railroad across the said Indian Reservation.’ ”

The railway company then petitioned the Office of Indian Affairs to obtain consent to a right of way across the reservation. The acting commissioner notified the railway company that a right of way would require congressional approval.

“There is no indication that Seattle and Northern Railway Company obtained approval from the Tribe, the Department of Interior, or Congress before completing the line,” according to court documents.

Fast forward 80 years. Swinomish contacted Seattle and Northern Railway Company’s successor, Burlington Northern—now BNSF—regarding what it considered “an ongoing and unauthorized use” of Swinomish lands. Both sides were unable to come to an agreement, and in 1977 the Swinomish requested that the United States bring a lawsuit against Burlington Northern for trespass damages and removal of the rail line.

Burlington Northern filed an application with the BIA for a railroad right of way across the reservation, arguing that its right had been established by an 1899 law regulating the granting of rights of way “through any Indian Reservation in any State or Territory, except Oklahoma.” The Swinomish objected and the application was denied, as were several appeals; the U.S. Ninth Circuit ruled that the consent of a Native nation “is a condition precedent to the grant of a railroad right of way across its lands,” and the Swinomish filed a trespass action against Burlington Northern.

The Swinomish Tribe and Burlington Northern eventually negotiated a settlement. Burlington Northern agreed to submit to the BIA an application for a right of way easement on terms and conditions agreed upon by the parties, and the tribe would notify the BIA that it had consented to the specified terms.

Among the terms, according to court documents:

Burlington Northern agreed to pay $125,000 “for all rent, damages and compensation … for past occupancy of the right-of-way from date of construction in 1889 until January 1, 1989.” Burlington Northern would thereafter pay $10,000 per year, adjusted periodically based on the Consumer Price Index and changes in property values.

The easement has an initial term of 40 years, with two 20-year extensions at Burlington Northern’s option.

Burlington Northern promised to “keep the Tribe informed as to the nature and identity of all cargo transported … across the Reservation.”

Burlington Northern promised that, unless otherwise agreed to in writing, “only one eastern-bound train and one western-bound train of 25 cars or less shall cross the Reservation each day.”

Swinomish alleges BNSF has not complied with the cargo-reporting requirement of the agreement, despite requests from the Tribe, since at least 1999.

In October 2011, the Tribe contacted BNSF about reports that the railroad company intended to carry crude oil in 100-car trains across the reservation, and reminded BNSF of its obligation to obtain written approval for any such increase in traffic. BNSF did not respond, according to court documents.

The Tribe sent a second letter in September 2012 when 100-car shipments began. In February 2013, BNSF confirmed trains of crude oil from North Dakota averaging 102 cars in each direction were crossing the reservation almost every day. BNSF announced its intention to continue running the trains as it had been since 2012.

The court wrote that “there is no genuine issue” regarding whether a breach of agreement occurred.

“BNSF’s predecessor promised to keep the Tribe apprised of the cargo it was carrying and to limit the number of trains (and the number of cars in those trains) ‘unless otherwise agreed in writing,’ ” the court wrote. “BNSF has breached both of those promises: It failed to timely disclose its cargo, and it made no attempt to obtain the Tribe’s written agreement to an increase in traffic across the Reservation until long after the unit train shipments had begun … BNSF breached the Easement Agreement.”